South Africa: Protection Of Personal Information Bill: What Should You Be Asking?

To whom does POPI apply?

There are very few businesses in South Africa that will not be
impacted by POPI. POPI applies to -

any public or private body or any other person which, alone or
in conjunction with others, determines the purpose of and means for
processing personal information ("responsible party");
and

any person who processes personal information for a responsible
party in terms of a contract or mandate, without coming under the
direct authority of the responsible party.

Does POPI also apply to personal information of companies?

Yes.

Are there any exemptions or exclusions from compliance with
POPI?

Yes, there are numerous exclusions and exemptions from
compliance with the information processing principles prescribed by
POPI. These exclusions and exemptions apply depending on the type
of information being processed and how it is processed.

What is "personal information"?

"Personal information" is extremely widely stated and
includes any information that can identify a person.

What is "processing"?

"Processing" is also very widely stated and includes a
vast number of activities whether or not undertaken by automatic
means, concerning personal information.

What is a "record"?

A "record" is also any recorded information regardless
of form or medium in the possession or under the control of a
responsible party, whether or not it was created by a responsible
party and regardless of when it came into existence.

What is "special personal information"?

A higher degree of protection is given to special personal
information under POPI given the highly sensitive nature of such
information. Special personal information includes information
concerning a child and personal information concerning the
religious or philosophical beliefs, race or ethnic origin, trade
union membership, political opinions, health, DNA, sexual life or
criminal behaviour of a data subject.

What are the information processing principles?

There are eight information processing principles which form the
core of POPI. These are -

accountability: the responsible party must
ensure that the eight information processing principles are
complied with;

processing limitation: processing must be
lawful and personal information may only be processed if it is
adequate, relevant and not excessive given the purpose for which it
is processed;

purpose specification: Personal information
must be collected for a specific, explicitly defined and lawful
purpose related to a function or activity of the responsible party.
The responsible party must take steps to ensure that the data
subject is aware of the purpose for which his/her personal
information is being collected;

further processing limitation: this is where
personal information is received from a third party and passed on
to the responsible party for further processing. In these
circumstances, the further processing must be compatible with the
purpose for which it was initially collected;

information quality: the responsible party
must take reasonably practicable steps to ensure that the personal
information is complete, accurate, not misleading and updated where
necessary, taking into account the purposes for which it was
collected;

openness: Personal information may only be
processed by a responsible party that has notified the Information
Protection Regulator. Further certain prescribed information must
be provided to the data subject by the responsible party including
what information is being collected, the name and address of the
responsible party, the purpose for which the information is
collected and whether or not the supply of the information by that
data subject is voluntary or mandatory;

security safeguards: the responsible party
must secure the integrity of personal information in its possession
or under its control by taking prescribed measures to prevent loss
of, damage to or unauthorised destruction of personal information
and unlawful access to or processing of personal information;

data subject participation: A data subject has
the right to request a responsible party to confirm, free of
charge, whether or not the responsible party holds personal
information about the data subject and request from a responsible
party the record or a description of the personal information held,
including information about the identity of all third parties, or
categories of third parties, who have, or have had, access to the
information;

A data subject may request a responsible party to
–

correct or delete personal information about the data subject
in its possession or under its control that is inaccurate,
irrelevant, excessive, misleading or obtained unlawfully; or

destroy or delete a record of personal information about the
data subject that the responsible party is no longer authorised to
retain.

Can I send personal information overseas and can personal
information be returned to South Africa?

Yes, but there are restrictions on the sending of personal
information outside South Africa as well as on the transfer of
personal information back to South Africa. The applicable
restrictions will depend on the laws of the country to whom the
data is transferred or from where the data is returned, as the case
may be.

Do I need to provide an opt in or opt out for direct
marketing?

Yes. Responsible parties should make use of both opt in and opt
out options to make sure that the data subject understands and
knows what he or she is consenting and objecting to.

For how long do I need to retain personal information under
POPI?

Subject to exemptions provided for in POPI, personal information
must not be retained (any) longer than (is) necessary for achieving
the purpose for which the information was collected. In addition,
if a responsible party has used the personal information of a data
subject to make a decision about the data subject, it must retain
the record for such period as may be required or prescribed by law
or a code of conduct. If there is no law or code of conduct
prescribing a retention period, it must retain the record for a
period which will afford the data subject a reasonable opportunity
to request access to the record.

A responsible party must destroy or delete a record of personal
information or de-identify it as soon as reasonably practicable
after the responsible party is no longer authorised to retain the
record.

Who is the Information Regulator and what are its powers?

The Information Regulator is a juristic body that will be
appointed in terms of POPI and will have wide ranging powers and
duties including -

to educate the public about POPI;

to monitor and enforce compliance with POPI;

to handle complaints about alleged violations of the protection
of personal information of data subjects;

to attempt to resolve complaints by means of dispute resolution
mechanisms such as mediation and conciliation; and

to issue, from time to time, codes of conduct and make
guidelines to assist bodies to develop codes of conduct or to apply
codes of conduct.

What is the sanction for non-compliance with POPI?

Sanctions include fines and imprisonment as well as
administrative fines up to R1million. What are the transitional
provisions provided for by POPI? Processing of personal information
which is taking place on the date when POPI comes into force and
does not conform to POPI must comply within one year of such
date.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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